Thirty Meter Telescope
Preface to the Board of Land and Natural Resources’ Findings of Fact, Conclusions of Law, and Decision and Order regarding Conservation District Use Permit (CDUP) HA-3568 for the Thirty Meter Telescope at the Mauna Kea Science Reserve, Ka’ohe Mauka, Hamakua, Hawai’i (September 27, 2017):
The Board adopts the hearing officer’s recommended findings of fact, conclusions of law, and decision and order, with modifications, including additional conditions. The Board commends the hearing officer’s thorough, comprehensive and well-considered report, prepared after 44 days of hearings. The Board’s modifications are consistent with the hearing officer’s factual findings and legal conclusions. Along with minor corrections, the changes mostly give further explanations for some aspects of the decision.
Because of the length of this document, the Board thought it would be useful to the parties and public to give a brief summary. This Preface cannot describe fully how the Board considered various factors. It is not intended to replace or supplement the findings of fact, conclusions of law, and decision and order, and they prevail in case of any perceived conflict between them and this Preface.
The TMT is a very large structure, 180 feet tall, proposed near the top of a culturally important and magnificently beautiful mountain. This project is not, however, on an untouched landscape. Mauna Kea now hosts twelve observatories, including six that are between 100 and 151 feet tall. The first large telescope on Mauna Kea was completed forty-seven years ago.
The TMT will not pollute groundwater, will not damage any historic sites, will not harm rare plants or animals, will not release toxic materials, and will not otherwise harm the environment. It will not significantly change the appearance of the summit of Mauna Kea from populated areas on Hawai‘i Island.
The TMT site and its vicinity were not used for traditional and customary native Hawaiian practices conducted elsewhere on Mauna Kea, such as depositing piko, quarrying rock for adzes, pilgrimages, collecting water from Lake Waiau, or burials. The site is not on the summit ridge, which is more visible, and, according to most evidence presented, more culturally important than the plateau 500 feet lower where TMT will be built.
Some groups perform ceremonies near the summit. The evidence shows that these ceremonies began after the summit access road and first telescopes were built, but, in any case, the TMT will not interfere with them.
Individuals testified that seeing the TMT will disturb them when they are doing ceremonies or other spiritual practices. The TMT cannot be seen from the actual summit or from many other places on the summit ridge. Where it would be visible, other large telescopes are already in view. It will not block views from the summit ridge of the rising sun, setting sun, or Haleakalā. Some native Hawaiians expressed that Mauna Kea is so sacred that the very idea of a large structure is offensive. But there are already twelve observatories on Mauna Kea, some of them almost as large as the TMT. They will remain even if the TMT is not built. No credible evidence was presented that the TMT would somehow be worse from a spiritual or cultural point of view than the other large observatories. Each observatory received a permit after a process allowing public participation and judicial review, over a period spanning three decades.
To the extent that the belief that Mauna Kea is too sacred to allow large structures is a religious one, under the federal and state constitutions a group’s religious beliefs cannot be given veto power over the use of public land.
Other witnesses, including some native Hawaiians, embrace a different way of thinking and feeling about the TMT: as a project that honors Mauna Kea rather than injures it. After a worldwide search, scientists found that Mauna Kea is the best site on earth for the most advanced telescope ever built. Mauna Kea will forever be known throughout the world as the site of profound discoveries about the universe. These witnesses see TMT and the other telescopes, not as objects spoiling the landscape, but as portals to discovery placed in this site made ideal for them.
To these witnesses, respect for Mauna Kea can be reconciled with modern astronomy. When ancient Hawaiians found a resource valuable to them – the densest rock in Hawai‘i – near the summit of Mauna Kea, they made use of it, quarrying hundreds of acres. Ancient Hawaiians intensely studied the stars in ways consistent with their technology. Traditional Hawaiian navigation depended upon knowledge of the stars.
King David Kalākaua enthusiastically supported astronomy in Hawai‘i. He wrote: “It will afford me unfeigned satisfaction if my kingdom can add its quota toward the successful accomplishment of the most important astronomical observation of the present century…” TMT will contribute $1 million a year toward education, and has signed a sublease agreement committing $300,000/yr. at first, increasing to $1 million/yr., for conservation on Mauna Kea. No existing observatory makes any such contributions.
Astronomy directly supports about 1,000 jobs in Hawai’i. TMT will employ about 140 people. The decision contains 43 special conditions to ensure that the project lives up to its environmental commitments, that the educational fund will help the underserved members of the community, that TMT will train and hire local workers, and that the native Hawaiian cultural presence at Hale Pōhaku will be enhanced.
Astronomers discovered that the earth goes around the sun; that we live in one of more than 100 billion galaxies; that our universe expanded from a single point 13.7 billion years ago. These discoveries shape how we see our place in the universe. Other telescopes on Mauna Kea have already contributed to human knowledge. TMT, if built, will do the same.
One native Hawaiian story about the origin of Mauna Kea is that Wakea, “Sky Father”, and Papa, “Earth Mother”, created a child, Hawai’i Island. Mauna Kea is the highest summit of the island, this union of heaven and earth. Today, Mauna Kea is the best place on earth to study the heavens.
Findings of Fact, Conclusions of Law, and Decision and Order (FoF, CoL, D&O) regarding Conservation District Use Permit (CDUP) HA-3568 for the Thirty Meter Telescope
FoF, CoL, D&O, by section:
I. The parties (note: scan contains sections I through IV)
II. Procedural history: Pre-hearing
III. Procedural hearing: Evidentiary hearing
IV. Procedural hearing: Post-hearing
Findings of Fact
A. The General Lease, The Mauna Kea Science Reserve and the University Management Area
B. Development of modern astronomy facilities on Mauna Kea prior to 2000
C. Development of implementation of the 2000 Master Plan and the Office of Mauna Kea Management
D. Development of the Comprehensive Management Plan and its sub-plans
E. Current and future decommissioning
F. Astronomy development under the Master Plan
G. BLNR ongoing jurisdiction
H. Development of the University management efforts
A. History of the TMT project
B. Formation of TIO
C. Sublease between the University and TIO
D. Consultation for the proposed project
E. Project description
F. The unique combination of conditions that makes Mauna Kea a premier location for astronomical observatories
G. The scientific value of the TMT Observatory
H. Economic benefits of the TMT Observatory
I. TMT project construction activities
J. Educational and employment opportunities
K. TMT project mitigation measures
L. TMT project decommissioning
N. The OCCL report recommends approval of CDUA
IV. Hawai‘i Administrative Rules § 13-5-30(C): The eight criteria
A. Criterion one: The proposed use is consistent with the purpose of the Conservation District.
B. Criterion two: The proposed land use is consistent with the objectives of the Subzone of the land on which the use will occur.
C. Criterion three: The proposed land use complies with the provisions and guidelines contained in Chapter 205A, HRS entitled “Coastal Zone Management”, where applicable.
D. Criterion four: The proposed land use will not cause substantial adverse impact to existing natural resources within the surrounding area, community or region.
i. Biologic Resources
ii. Archaeological and Historic Resources
iii. Cultural Resources and Practices
iv. Visual and Aesthetic Resources
v. Hydrology and Water Resources
vi. Hazardous Waste, Solid Waste, and Wastewater
E. Criterion five: The proposed land use, including buildings, structures and facilities, shall be compatible with the locality and surrounding areas, appropriate to the physical conditions and capabilities of the specific parcel or parcels.
F. Criterion six: The existing physical and environmental aspects of the land, such as natural beauty and open space characteristics, will be preserved or improved upon, whichever is applicable.
G. Criterion seven: Subdivision of land will not be utilized to increase the intensity of land uses in the Conservation District.
H. Criterion eight: The proposed land use will not be materially detrimental to the public health, safety and welfare.
V. Petitioners’ and opposing intervenors’ arguments that UHH fails to meet criteria for approval of permit
Conclusions of Law
I. Introduction (note: scan contains sections I through IX)
II. Jurisdiction and standing
III. Denial of outstanding motions
IV. Authority of Hearing Officer
V. Evidentiary standards
VI. Cross examination procedures
VII. Rebuttal witnesses
VIII. Official notice
IX. Legal framework
A. Burden of proof
B. State constitutional authority
C. Statute and administrative rules
D. Case law
iv. Ka Pa‘akai
vi. Mauna Kea Anaina Hou
vii. Kilakila ʻO Haleakalā
X. Discussion and conclusions
A. The TMT satisfies the eight criteria of HAR § 13- 5-30(C)
B. The TMT project satisfies:
i. The Public Trust Doctrine
ii. The protection of customary and traditional Native Hawaiian rights
C. Petitioners and opposing intervenors other arguments
i. Insufficient consultation
ii. Waiver of challenges to the FEIS
iii. Alleged desecration
iv. Vacatur of consent to sublease
v. UH Hilo authority to execute CDUA
vi. CDUA reference to TMT Corporation and TIO
vii. NHPA Section 106 review / National Environmental Policy Act
Amended opinion of the Supreme Court of the State of Hawai`i in the matter of contested case hearing re Conservation District Use Application (CDUA) HA-3568 for the Thirty Meter Telescope at the Mauna Kea Science Reserve, Kaohe Mauka, Hamakua, Hawaii, TMK (3) 404015:009. November 30, 2018.
Table 1: Documents relating to the Thirty Meter Telescope
|Thirty Meter Telescope Management Plan||The Management Plan was submitted along with Conservation District Use Application (CDUA) HA-3568 in October 2010.|
|TMT Archaeological Monitoring Plan||The final report was approved by the State Historic Division (SHPD) May 2013.|
|TMT Historic Preservation Mitigation Plan||The plan was approved by SHPD in September 2012.|
|TMT Invasive Species Prevention and Control Program||The outlines of the program were discussed in section 1.6 of TMT's Construction Plan. It will be further refined by TMT and will be included with the best management document that will be submitted with the forthcoming construction plans.|
|TMT Arthropod Access Way Monitoring Plan||The attached plan was submitted along with CDUA HA-3568.|
|TMT Cultural Resources Management Plan (applicable provisions)||The attached document are the provisions discussed in CDUA HA-3568; they are based on Section 7.1.1 (Native Hawaiian Cultural Resources) of the Comprehensive Management Plan|
|Public Access Plan. (applicable provisions)||There is no specific access plan for TMT; the attached document contains the discussion of the impacts on public access from CDUA HA-3568 . The provisions of the 2010 Public Access Plan for UH Managed Lands on Maunakea will be in effect.|
|National Pollutant Discharge Elimination|
|TMT Notice to Proceed||Issued June 19, 2019|
|Extension of construction deadlines||Issued July 30, 2019|
|Notice of start of construction||Approved May 4, 2021|
Table 2: Application and Environmental Documents
|R-1||Conservation District Use Application for the Thirty Meter Telescope|
|R-2||Thirty Meter Telescope (TMT) Project Chapter 343 Final EIS summary Sheet|
|R-3||Thirty Meter Telescope (TMT) Project Chapter 343 Final Environmental Impact Statement Volume 1|
|R-4||Thirty Meter Telescope (TMT) Project Chapter 343 Final Environmental Impact Statement Volume 2|
|R-5||Thirty Meter Telescope (TMT) Project Chapter 343 Final Environmental Impact Statement Volume 3 - Appendices|
|R-6||Acceptance Letter of the Governor to the Chancellor, University of Hawaii at Hilo Regarding Mitigation Measures in the Final Environmental Assessment for the Thirty Meter Telescope Observatory on Mauna Kea, Island of Hawaii|
|R-7||OCCL staff report regarding Conservation District Use Application HA-3568 for the Thirty Meter Telescope|
|R-8||Exhibits for OCCL staff report regarding Conservation District Use Application HA-3568 for the Thirty Meter Telescope|
Table 3: 2021 Petition for a Declaratory Order
|001||05-24-21||Mauna Kea Hui’s motion to reopen hearing to hear motion for confirm non-compliance with condition no. 4, or, alternatively, petition for declaratory orders concerning the same; Memorandum in support of motion; Declaration of Clarence Kukaukahi Ching; Exhibits 01-07; COS|
|002||10-18-21||Request from the Law Office of Bianca Isaki for ruling or hearing on Mauna Kea Hui’s motion to re-open hearing to hear motion to confirm non-compliance with condition no. 4, or, alternately, petition for declaratory orders concerning the same, filed May 24, 2021 in Docket No. BLNR CC-16-002.|
|003||10-20-21||Minute Order No. 1; Exhibit A; COS|
|004||10-31-21||Temple of Lono brief in response to petitioners’ motion; COS|
|005||11-03-21||Cindy Freitas brief in response to petitioners’ motion; COS|
|006||11-04-21||TMT International Observatory LLC’s memorandum in opposition to Mauna Kea Hui’s motion to reopen hearing to hear motion to confirm non-compliance with condition no. 4, or, alternatively, petition for declaratory order concerning the same; Declaration of Fengchuan Liu; Declaration of Counsel; Exhibits “A” – “C”; COS|
|007||11-04-21||University of Hawai'i at Hilo’s substantive joinder to TMT International Observatory LLC's memorandum in opposition to Mauna Kea Hui's motion to reopen hearing to hear motion to confirm non-compliance with condition no. 4, or, alternatively, petition for declaratory orders concerning the same; COS|
|008||11-04-21||Perpetuating Unique Educational Opportunities’ (“PUEO”) substantive joinder to TMT International Observatory LLC’s memorandum in opposition to Mauna Kea Hui’s motion to reopen hearing to hear motion to confirm non-compliance with condition no. 4, or, alternatively, petition for declaratory orders concerning the same; COS|
|009||11-08-21||Flores-Case `Ohana filing re State of Hawaiʿi Board of Land and Natural Resources failure to properly serve Minute Order No. 1 to the Flores-Case ʿOhana: Declaration of E. Kalani Flores; Exhibit A; COS|
|010||11-12-21||Mauna Kea Hui’s reply to TMT International Observatory LLC’s memorandum in opposition, University of Hawaiʿi at Hilo’s substantive joinder to TMT International Observatory LLC’s memorandum in opposition, and Perpetuating Unique Educational Opportunities’ substantive joinder to TMT International Observatory LLC’s memorandum in opposition; Declaration of Shelley Muneoka; Exhibits 08-10; COS|
|011||11-19-21||Minute Order 2|
|012||12-03-21||Flores-Case Ohana memorandum in support of Mauna Kea Hui’s motion to reopen hearing to hear motion to confirm non-compliance with Condition No. 4, or, alternatively, petition for declaratory orders concerning the same; Declaration of E. Kalani Flores; Exhibits A – H; COS|
|013||12-10-21||TMT International Observatory LLC’s request to supplement record; Declaration of counsel; Exhibit A; COS|
|014||12-13-21||Mauna Kea Hui’s memorandum in opposition to TMT International Observatory LLC’s request to supplement the record; COS|
|015||06-06-22||Mauna Kea Hui’s motion to submit new evidence, or alternatively, to request judicial notice of the same; Declaration of counsel; Exhibit A; COS|
|016||06-09-22||TMT International Observatory LLC’s response to Mauna Kea Hui’s motion to submit new evidence, or alternatively, to request judicial notice of the same; Declaration of counsel; Exhibit A; COS|
|017||06-09-22||University of Hawai’i at Hilo’s substantive joinder to TMT International Observatory LLC’s response to Mauna Kea Hui’s motion to submit new evidence, or alternatively, to request judicial notice of the same; COS|
|018||06-13-22||Perpetuating Unique Educational Opportunities’ (PUEO) joinder to TMT International Observatory LLC’s response to Mauna Kea Hui’s motion to submit new evidence, or alternatively, to request judicial notice of the same|
|019||06-13-22||Perpetuating Unique Educational Opportunities’ (PUEO) joinder to University of Hawai’i at Hilo’s substantive joinder to TMT International Observatory LLC’s response to Mauna Kea Hui’s motion to submit new evidence, or alternatively, to request judicial notice of the same|
|020||06-17-22||Flores / Flores-Case ’Ohana Memorandum in support of Mauna Kea Hui’s motion to submit new evidence, or alternatively, to request judicial notice of the same; Declaration of E. Kalani Flores; Exhibits A-E|
|21||02-23-23||Isaki second request for ruling or hearing on Mauna Kea Hui's motion to re-open hearing to hear motion to confirm non-compliance with condition no.. 4, or, alternately, petition for declaratory orders concerning the same|
|022||01-24-22||Minute Order 3 regarding TIO’s request to supplement record|
|023||07-03-23||Minute Order 3 setting time and date of oral arguments|
|024||07-17-23||BLNR Chair Dawn Chang's disclosure statement regarding Mauna Kea Hui's petition for a declaratory order|
|025||07-19-23||Minute Order 5, deferring date of oral arguments|
|026||08-04-23||Minute Order 6 setting oral arguments|
|027||08-17-23||Mauna Kea Hui's motion to modify Minute Order No. 6; Declaration of Richard Naiweha Wurdeman; Exhibits 1-3; COS|
|028||08-21-23||TMT International Observatory LLC's response to Mauna Kea Hui's motion to modify Minute Order No. 6|